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February 2022: New Jersey Governor Signs Law Requiring a Written Notice for Tracked Company Vehicles

Update Applicable to:
All employers with employees operated vehicles in the state of New Jersey

What happened?
On January 18, 2022, Governor Murphy signed into law Assembly Bill No. 3950 (AB 3950) that will affect businesses that have employee-operated vehicles.

What are the details?
Effective April 18, 2022, employers will be required to provide their employees a written notice before using tracking devices on vehicles operated by employees.

The law defines a “tracking device” as “an electronic or mechanical device which is designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device.” Devices “used for the purpose of documenting employee expense reimbursement” are excluded from the definition of “tracking device.” Notably, the law applies regardless of whether the employee uses a company-owned vehicle or the employee’s personal vehicle.

The New Jersey law expressly states that it does not “supersede regulations governing interstate commerce, including but not limited to, the usage of electronic communications devices as mandated by the Federal Motor Carrier Safety Administration.”

An employer that knowingly uses a tracking device on an employee-operated vehicle without providing written notice to the employee will be subject to a civil penalty in an amount not to exceed $1,000 for the first violation and not to exceed $2,500 for each subsequent violation.

For more information, please see the links below:

Assembly Bill No. 3950

Article 1

What do employers need to do?
Employers should review the links provided above and prepare to draft written notices to provide to all current and new employees once the law is in effect.

February 2022: New Jersey Passes Law Expanding Parking Lot Liability for Employers

Update Applicable to:
All employers who provide or designate parking areas for their employees in the state of New Jersey

What happened?
On January 10, 2022, Governor Murphy signed Bill S771 into law, amending Section 36 of the New Jersey Worker’s Compensation Act and expanding workers’ compensation liability in parking lots.

What are the details?
S771 amends Section 36 of the New Jersey Workers’ Compensation Act as follows:

”Employment shall also be deemed to commence, if an employer provides or designates a parking area for use by an employee, when an employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of a work period; provided that, if the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of a work period.”

Prior to this amendment, an injury was only compensable under workers’ compensation if the employer-owned or controlled the parking lot or directed the employee where to park. This amendment expands those principles in two main ways.

First, an employer will be liable if it “provides” a parking area and the injury occurs in that parking area. The term “provides” is somewhat ambiguous and will certainly lead to creative arguments from petitioner and respondent attorneys as to whether an employer provides the parking. For instance, if an employer leases an office that contains access to a parking lot, is that considered providing a parking area? In the past, the analysis would focus on whether the employer had control over that parking lot. With this amendment, petitioner attorneys will certainly argue that when an employer provides office space with a parking area, it is also providing the parking area. On the contrary, respondent attorneys will argue that an employer can only provide what it owns and/or controls and, if it does neither, it does not provide the parking area.

Second, the amendment makes clear that if an employee parks at an offsite parking area provided by the employer and is injured while traveling directly from that area to the place of employment, that injury will be compensable. A prior New Jersey Supreme Court decision, Hersch v. County of Morris, 217 N.J. 236 (2014), found that an employee injured on a public street while traveling from offsite parking provided by the employer to the worksite was not compensable. This amendment essentially overturns that decision.

This law takes effect immediately.

For more information, please see the links below:

Bill S771

New Jersey Workers’ Compensation Law

Article

What do employers need to do?
Employers should review the links provided above, ensure their employees’ safety in the designated parking areas, and be aware that an employee injured while traveling to and from the designated parking area and the place of employment must and will be compensated for the injury.

February 2022: New Jersey Expands Vaccination Requirements for Healthcare Workers and High-Risk Settings

Update Applicable to:
All employers with healthcare workers and healthcare facilities in the state of New Jersey

What happened?
On January 19, 2022, Governor Philip D. Murphy signed Executive Order 283 (EO 283), which requires healthcare workers and those at high-risk congregate settings to be fully vaccinated against COVID-19, including receipt of a booster shot, or have their employment terminated.

What are the details?
Effective immediately, workers at New Jersey healthcare facilities and high-risk congregate settings must be fully vaccinated by specific dates or be subject to disciplinary actions for noncompliance.

As of January 19, 2022, healthcare workers in these settings will no longer be permitted to submit to testing as an alternative to full vaccination unless they are exempt from vaccination because they have been provided accommodation.

If an employee does receive an exemption, they must submit to weekly or twice weekly testing in accordance with EO 252, which was signed by Governor Murphy last year.

Consistent with the Centers for Medicare and Medicaid Services (CMS) mandate requiring healthcare facilities participating in Medicare and Medicaid programs to require all employees, volunteers, contractors, and other workers to receive the COVID-19 vaccine, EO 283 provides the following dates for compliance:

  • All workers must receive their first dose of a COVID-19 vaccine by January 27, 2022
  • Unvaccinated workers must receive their first dose of a COVID-19 vaccine by January 27, 2022
  • All workers must complete a primary series (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series) of a COVID-19 vaccine by February 28, 2022
  • All workers must provide adequate proof of full vaccination status by February 28, 2022. Concerning booster shots, workers must provide sufficient proof of vaccination status within three weeks of becoming eligible for the booster shot, whichever is later.

For purposes of this EO, healthcare and high-risk congregate settings include:

  • Acute, pediatric, inpatient rehabilitation, and psychiatric hospitals, including specialty hospitals and ambulatory surgical centers;
  • Long-term care facilities, including the state veterans homes;
  • Intermediate care facilities, including the state developmental centers;
  • Residential detox, short-term and long-term residential substance abuse disorder treatment facilities;
  • Clinic-based settings like ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Centers, family planning sites, and opioid treatment programs;
  • Community-based healthcare settings, including Program of All-Inclusive Care for the Elderly, and pediatric and adult medical daycare programs;
  • Licensed home health agencies and registered healthcare service firms operating within the state;
  • State and county correctional facilities;
  • Secure care facilities and residential community homes operated by the Juvenile Justice Commission;
  • Licensed community residences for individuals with intellectual and developmental disabilities (IDD) and traumatic brain injury (TBI);
  • Licensed community residences for adults with mental illness;
  • Certified day programs for individuals with IDD and TBI; and
  • Group homes and psychiatric community homes licensed by DCF.  

Additionally, workers under the EO are defined as:

  • Full- and part-time employees;
  • Contractors; and
  • Other individuals working in the covered setting, including individuals providing operational, custodial, or administrative support.

For more information, please see the links below:

Executive Order 283 (EO 283)

Executive Order 252 (EO 252)

New Jersey Department of Health Article

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and make immediate adjustments to their COVID-19 vaccination policies to ensure they are in compliance with the new law.

December 2021: New Jersey Passes Age Protections for Employees Aged 70 and Over

Update Applicable to:
All employers in New Jersey.

What happened?
On October 5, 2021, Governor Murphy signed legislation expanding the New Jersey Law Against Discrimination (NJLAD), providing increased protection against age discrimination for workers 70 years of age and older.

What are the details?
Effective October 5, 2021, employers are prohibited from discriminating against employees from being hired or promoted because they are 70 years of age or older.

Employees that are 70 years of age and older can now pursue claims and damages available under the NJLAD, including compensatory damages, punitive damages, back pay, front pay, and attorneys’ fees. In addition, those forced to retire at a certain age are limited to filing a complaint with the state’s Attorney General with potential relief limited to reinstatement with back pay and interest.

For more information, please see the links below:

New Jersey Law Against Discrimination

Article 1Article 2Article 3

What do employers need to do?
Employers should review the links provided above, make changes to their hiring and promotion policies, and train supervisors and managers to understand that they cannot refuse to accept employment or to promote any person over 70 years of age. 

November 2021: New Jersey Employers Now Required to Give Job Preference to Certain Employees

Update Applicable to:

All employers in New Jersey.

What happened?

On September 24, 2021, Governor Murphy signed Assembly Bill 2617 (AB2617) amending New Jersey’s Workers’ Compensation Act.

What are the details?

Effective immediately, the bill amends New Jersey’s Workers’ Compensation Act to require employers with 50 or more employees to provide a hiring preference. This will be to employees following a work-related injury, who have reached maximum medical improvement but are unable to return to the positions where they were previously employed.

For more information, please see the links below:

AB 2617

Article

What do employers need to do?

Employers should review the bill and their applicable policies for injured employees to comply with the bill.

November 2021: New Jersey 2022 Minimum Wage Increases

Update Applicable to:

All employers in New Jersey.

What happened?

On February 4, 2019, Governor Murphy signed Bill A-15 into law, which sets to raise the minimum wage to $15 per hour by 2024.

What are the details?

Effective January 1, 2022, the following minimum wage increases will go into effect due to Bill A-15:

  • Most employers: increase from $12 to $13 per hour.
  • Tipped employees: increase from $4.13 to $5.13 per hour.
  • Seasonal and small employers (fewer than 6 employees): increase from $11.10 to $11.90 per hour.
  • Agricultural employees: increase from $10.44 to $10.90 per hour.
  • Long-term care facility staff: from $15 to $16 per hour.

For more information, please see the links below:

Bill A-15

Article

What do employers need to do?

Employers should review the information above and their payroll policies, and make changes to comply with the law.

August 2021 New Jersey HR Legal Updates

New Jersey Requires Vaccines or Testing of Employees in High-Risk or Healthcare Settings

Update Applicable to:
Employers in New Jersey in the covered businesses detailed below.

What happened?
On August 6, 2021, Governor Murphy issued Executive Order 252 (EO 252).

What are the details?
The order, effective September 7, 2021, requires employers in the “covered settings” to have adequate policies, privacy protections, and training or education procedures in place. The employer settings covered in the order are as follows:

  • Healthcare facilities:
    • Acute, pediatric, inpatient rehabilitation, and psychiatric hospitals (including specialty hospitals, and ambulatory surgical centers).
    • Long-term care facilities.
    • Intermediate care facilities.
    • Residential detox, short-term, and long-term residential substance abuse disorder treatment facilities.
    • Clinic-based settings (e.g., ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Sites, family planning sites, and opioid treatment programs).
    • Community-based healthcare settings (e.g., Program of All-Inclusive Care for the Elderly, pediatric and adult medical daycare programs, and licensed home health agencies and registered health care service firms).
  • High-risk congregate settings:
    • State and county correctional facilities.
    • Secure care facilities operated by the Juvenile Justice Commission.
    • Licensed community residences for individuals with intellectual developmental disabilities (IDD) or traumatic brain injuries (TBI).
    • Licensed community residences for adults with mental illness.
    • Certified day programs from individuals with IDD or TBI.
    • Certain long-term care facilities subject to prior New Jersey Department of Health Executive Directives.

Covered settings must establish a policy that requires covered workers to provide adequate proof of full vaccination for COVID-19 or submit to COVID-19 testing one to two times weekly minimum. Any covered workers who are not fully vaccinated or have not provided adequate proof of vaccination by the effective date must submit to the testing protocol until fully vaccinated.

Covered workers are considered fully vaccinated two weeks or more after receiving the second vaccine dose in a two-dose series or after a single-dose vaccination. The acceptable forms of vaccination proof include:

  • The Centers for Disease Control and Prevention (CDC) COVID-19 Vaccination Card issued by the vaccination site (or an electronic or physical copy of the card).
  • An official record from the New Jersey Immunization Information System (or other state registry).
  • A record from a healthcare provider’s portal or record system on official letterhead, signed by a licensed physician, physician assistant, nurse practitioner, registered nurse, or pharmacist.
  • A military immunization record from the Armed Forces.
  • A docket mobile phone application record or any state specific application that produces a digital health record.

Beginning the effective date, covered workers in a covered setting that are unvaccinated for COVID-19 must submit to COVID-19 testing at least one to two times per week. The covered setting also must establish a policy for tracking test results and report those results to its local health department.

The order can be read here.

An article on the order can be found here.

What do employers need to do?
Employers should review the order here and their current policies on vaccination to process any applicable updates and introduce any required policies to compliant with the state of New Jersey.

July 2021 New Jersey HR Legal Updates

Larger Penalties for Employee Misclassifications in New Jersey 

Update Applicable to:
All employers who operate and have employees in New Jersey. 

What happened?
On July 8, 2021, Governor Phil Murphy signed bills A5890/S3920, A5891/S3921, and A5892/S3922 into law. 

What are the details?
With A5890/S3920, effective immediately, the New Jersey Department of Labor and Workforce Development (NJDOL) is authorized to shut down a workplace that is found to have violated the Unemployment Compensation Law (UCL) and levy fines for each day the employer ignores the NJDOL’s order. 

New Jersey businesses can be issued a stop-work order and an indefinite suspension of business operations if they fail to pay UCL contributions. The order would encompass all locations and not a single location and the NJDOL can also assess a civil penalty of $5,000 per day for each day the employer conducts business in violation of the stop-work order. A request for a hearing challenging the stop-work order does not stay the effectiveness of the stop-work order. Businesses that receive a stop-work order must pay its employees for the first 10 days of the order. 

Failure to maintain wage records may trigger a permanent ban on a company’s New Jersey operations and a fine of not less than $1,000 per day until the employer gets into compliance. 

The second law, 5891/S3921, creates the Office of Strategic Enforcement and Compliance, which will investigate claims of employee misclassification and coordinate strategic enforcement efforts both within the NJDOL and across other state agencies. To be considered in substantial good standing with the state, an employer must have no outstanding liabilities for unpaid contributions into the Unemployment Compensation Fund. Businesses with any outstanding liability will receive no business assistance from NJDOL and their status with the NJDOL will be reported to other state agencies. 

The third law, A5892/S3922, effective January 1, 2022, streamlines the process for identifying unlawful employee misclassification, and provides that businesses that misclassify employees commit insurance fraud. An employer that is found to have “purposely” or “knowingly” misclassified its employees violates the New Jersey Insurance Fraud Prevention Act and is subject to fines starting at $5,000 for the first violation, $10,000 for the second violation, and $15,000 for each subsequent violation. An adverse finding under this law will trigger an investigation by the New Jersey Department of Banking and Insurance (“NJDOBI”). 

An article on the new bills can be read here. 

What do employers need to do?
Employers should review the laws and the information above to continue to stay in compliance in their employee classification and unemployment compensation processes.


May 2021 New Jersey HR Legal Updates

New WARN Changes Upcoming in New Jersey

Update Applicable to:
All employers operating within New Jersey.

What happened?
With the ending of the public health state of emergency in New Jersey, the effective date for changes tied to New Jersey’s Worker Adjustment and Retraining Notification (WARN) Act laws will begin to get closer.

What are the details?
Currently, the new set of changes to New Jersey’s WARN laws are tied to the ending of the state of emergency. With the state of emergency likely to end on or before June 13, 2021, it would place the effective date of these changes on September 11, 2021.

The major changes to the WARN laws in New Jersey would be as follows:

  • The amended law applies to employers with at least 100 employees, regardless of tenure or hours of work.
  • Notice is triggered by the termination of 50 employees, regardless of tenure or hours of work.
  • Terminations across the state are aggregated to determine if the threshold is met, regardless of where within the state the terminations occur.
  • Notice is increased to 90 days, previously 60.
  • Severance pay is automatic (though it integrates with existing employer severance plans, policies, or Collective Bargaining Agreement requirements) – with additional severance due if notice is not given.
  • Employees may not waive their right to severance under the law without state or court approval.

The bill can be read here.

An article with a more detailed breakdown may be found here.

What do employers need to do?
Employers should continue to monitor the situation and prepare to update their procedures related to layoffs and terminations once the effective date is settled.

November 2020 New Jersey Legal HR Updates

New Jersey Governor Signs Executive Order 192

What happened?
Governor Murphy signed Executive Order (EO) 192 on October 29, 2020 with an effective date on November 5, 2020.

What are the details?
EO 192 includes many different new requirements for New Jersey employers. EO 192 will apply to every business, non-profit, and governmental or educational entity. The order mainly focuses on new requirements for employers that require or permit employees to work at the physical workplace. Specifically, the requirements touch on the following subjects:

  • Physical distancing
  • Face masks or coverings
    • Includes language permitting employers to deny access to the workplace to individuals who will not wear a face mask or covering
  • Availability of sanitization materials
  • Employee hygiene requirements
  • Workplace sanitization
  • Routine employee health checks
  • Notification requirements for COVID-19 exposures in the workplace

Some employees are exempt from the requirements listed in EO 192 if they interfere with the discharge of their operational duties. These employees are: first responders, emergency management personnel, emergency dispatchers, healthcare personnel, court personnel, law enforcement, corrections personnel, hazardous material responders, transit workers, child protection personnel, child welfare personnel, housing or shelter personnel, military employees, and governmental employees engaged in emergency response activities.

Additionally, the order requires that the New Jersey Department of Labor and Workforce Development produce compliance and safety training for employers and employees through its programs, as well as provide notices or other informational materials to inform workers of their rights and employers of their obligations.

An article going in more detail on the requirements of the executive order can be found here.

The EO can be found here.

What do employers need to do?
New Jersey employers should review the requirements above and update their workplace policies as needed to remain in compliance.

_________________________________________________________________________________

Governor Murphy Signs Industry-Specific COVID-19 Restrictions

What happened?
In response to a recent COVID-19 surge, New Jersey Governor Murphy issued Executive Order (EO) 194, which impacts food and beverage establishments, scholastic and youth sports, and personal care services.

What are the details?
Of the impacted industries, the food and beverage industry were given the majority of the new restrictions. Specifically, those working in these industries will need to drastically reduce their seating capacity, by either spacing out tables by the minimum six feet apart in all directions, or by erecting barriers between tables, per guidance from the New Jersey Department of Health. Indoor operations must cease between the hours of 10:00 p.m. to 5:00 a.m., every day. Additionally, indoor bar areas are now prohibited for establishments to use. However, the order does expand the definition of outdoor seating area to now also include enclosed outdoor areas, provided that they meet certain requirements like ventilation and cleaning requirements.

Youth sports will be restricted by disallowing out-of-state travel for any activities and indoor sports venues are not to be used. These restrictions do not apply to collegiate or professional sports activities.

Personal care facilities will need to limit occupancy of any indoor premises to 2% of the maximum stated capacity. Some impacted businesses include cosmetology shops, barber shops, beauty salons, hair braiding shops, nail salons, electrology facilities, spas, day spas, massage parlors, tanning salons, and tattoo parlors.

An article covering these restrictions can be found here.

The Executive Order can be found here.

What do employers need to do?
New Jersey businesses operating in the impacted industries should update their workplace practices to reflect the new requirements.

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